A member said that the proposed change in the rule's language about
ex parte proceedings
did not seem to correct the tension between N.D.C.C. § 14-09-06.6 and the existing rule.
The member said the proposed change in the rule, because it required notice to the opposing
party, would not be an ex parte proceeding.

A member said that there may be a need for an ex parte order early in
an action because no
other orders are in place. The member said this was not the case post judgment, which could
explain why post judgment orders are treated differently.

A member said there are reasons why an ex parte order could be
needed post judgment,
such as when a parent with primary residential responsibility goes to jail. The member said
a legislative fix to the statute would be the best way to relieve the tension between the statute
and the rule.

A member said that one approach was to require applicants for ex
parte orders to follow
N.D.C.C. § 14-09-06.6's notice requirements before the court considers the application.
The member said this causes a delay but allows the ex parte order to be issued without
disobeying the statute.

A member said that ex parte relief is based on exceptional
circumstances, which exist at a
given moment and may change for the worse during a delay to give notice. A member
agreed that the proposed fix to the rule would not resolve the problem of delay.

A member said that members of the family law bar were concerned
that procedure for ex
parte orders was inconsistent across the state. The member said that if the proposed change
was adopted, there would be a consistent procedure for post judgment ex parte orders. A
member said that under the proposal, a party could file a proposed ex parte order along with
notice and motion under N.D.C.C. § 14-09-06.6. The court can then grant the order
pending resolution of the motion.

-3-

A member said such an order amounted to a post-judgment modification before the
other
party had a chance to respond.

A member said, by definition, an ex parte order cannot be granted
unless it is necessary due
to exigent circumstances. The member said that N.D.C.C. § 14-09-06.6 does not take
away a court's jurisdiction to respond to an emergency and that the rule should make it clear
that a court may respond to an emergency with an ex parte order pending the prima facie
case.

A member said the problem is the abuse of the system: parties come to
the court with
horrendous affidavits that are not subject to cross examination. The court then issues an ex
parte order without hearing the rest of the story. The member said N.D.C.C. § 14-09-06.6
is designed to head off the problems of one sided ex parte orders.

A member said N.D.C.C. § 14-09-06.6 requires the court to
deny a motion until a prima
facie case is established, which cannot happen until the opponent has a chance to respond.
The member said, however, that the statute deals with primary residential responsibility and
that it should be possible to craft the rule to allow a residence to be changed temporarily
prior to determination of permanent responsibility. A member responded that N.D.C.C.
§ 14-09-06.6 would still govern a temporary change of primary
responsibility.

A member said there are situations where ex parte relief is necessary
post judgment. The
member asked whether amending the rule would create a situation where N.D.C.C. §
14-09-06.6 said one thing and the rule said another, a situation that the Supreme Court or
legislature might ultimately need to sort out. The member said practitioners could challenge
orders issued contrary to the statute as illegal and seek relief regardless of what the rule says.
A member said having two rules, one in N.D.C.C. § 14-09-06.6 and another in the
statute, would not get North Dakota to a uniform practice.

A member said that in addition to a uniform rule on ex parte orders for
primary
responsibility, the rule needed a provision for parties who are just seeking changes in
parenting time.

A member said that the issues before the Committee could best be
addressed by the
legislature, given that a legislative session was about to open. The member said the
Committee was setting itself up for failure if it amended the rule in a way not in conformity
with N.D.C.C. § 14-09-06.6. A member responded that there was really no task force
or group in place to develop statutory amendments and take them to the legislature. A
member said the Family Law Section could possibly look at the issue at its November
seminar.

-4-

The Chair said N.D.C.C. § 14-09-06.6 was evidence of
public policy on modification
of primary residential responsibility and that issuing orders post judgment on an ex parte
basis seems to implicate this public policy. The Chair said legislative history indicated that
public policy was against children being moved back and forth between homes unless it is
necessary.

A member responded that if it is necessary to move a child, the courts
need to be able to do
it. The member said a child could be moved under N.D.C.C. § 14-09-06.6, but the move
would be delayed and the child might be endangered during the delay.

A member said a judge considering issuing an ex parte order is
required to determine the
existence of exceptional circumstances--such an order should not be issued as a matter of
course.

A member asked whether it was possible, without changing primary
residential
responsibility, to grant an ex parte order giving a party additional parenting time while a
motion is pending. The member said this could allow a court to move a child to a safe
environment until the matter was resolved. The consensus was that this could be done
without conflict with N.D.C.C. § 14-09-06.6.

A member suggested that language allowing ex parte modification of
"parenting time" be
integrated into the rule. The Committee discussed possible language for an amendment on
"parenting time."

A member said that courts in the past had taken the step, on an ex
parte basis under
exceptional circumstances, to extend parenting time rather than changing primary residential
responsibility. There is no statutory bar to a court extending parenting time ex parte, because
this is not a permanent modification.

A member suggested that any proposed new language should make
clear that exceptional
circumstances are required before an ex parte extension of parenting time can be granted.
A member said that the language of Rule 8.2 already required exceptional circumstances
before entry of any ex parte order.

A member said the language should make clear that no ex parte interim
order can be issued
to change primary residential responsibility but that such an order may be issued to extend
parenting time under appropriate circumstances. A member suggested that primary
residential responsibility and parenting time be dealt with in separate new paragraphs in the
rule.

-5-

Judge Nelson MOVED to amend Rule 8.2 by inserting separate new paragraphs at
page 5,
line 41. Judge Fontaine seconded.

A member explained that the proposed new paragraphs would make it
clear that no ex parte
interim order could be issued post judgment changing primary residential responsibility, but
that an order could be issued post judgment extending parenting time.

The Committee discussed the proposed language and by consensus
decided that the new
paragraphs should read: "(7) An ex
parte interim order modifying parenting time may be
issued postjudgment. (8) No ex parte interim order modifying primary residential
responsibility may be issued postjudgment."

A member said the effect of the proposed change would be to allow
orders giving a parent
extended parenting time on an interim basis when exceptional circumstances exist.

A member commented that giving extended parenting time in a
situation where exigent
circumstances possibly justify changing primary residential responsibility seemed like a
convoluted way of dealing with the issue. The member said that N.D.C.C. § 14-09-06.6
should be addressed at some point to deal with exigent circumstances. A member said that
the interplay between the statute and the rule would be discussed at the family law section
seminar to see if any legislative recommendations could be developed.

A member suggested that language should be added to the explanatory
note making it clear
that any motion for modification of primary residential responsibility needed to be made in
accordance with N.D.C.C. § 14-09-06.6.

Judge Nelson's motion CARRIED.

The Committee looked at alternative language for proposed changes to
Rule 8.2(e)(2)'s
affidavit practice provision. Alternative "B" would eliminate the requirement for affiants to
be made available for cross-examination while Alternative "C" would require the party
opposing the affidavit to give notice of intent to cross-examine the affiant.

A member said many affiants were normal people who become
involved in a matter
because of their knowledge of facts, not because they are associated with a party. The
member said that, under the current system, these people have to take time out of their lives
to sit at the courthouse to possibly face cross-examination. A member said usually the
affiant's only role to is to be present in compliance with Rule 8.2 (e)(2)--the affiants usually
do not get cross-examined.

-6-

Ms. Ottmar MOVED to amend Rule 8.2 (e)(2) as set out in
Alternative "C" on page 19,
lines 71-74. Judge McCullough seconded.

A member said that attorneys in general favor having the opportunity
to cross-examine
affiants, but they did not support continuing to require all affiants to show up.

A member asked whether the proposed language indicating that a party
who fails to give
notice "may" be considered to have waived the right to cross-examination is too flexible.
A member replied that there are always exceptional circumstances and the court needs
flexibility.

A member asked whether re-direct examination would be allowed of
an affiant who is
cross-examined. The member said that allowing re-direct consumes substantial amounts of
time. A member said some courts set a prescribed amount of time for the hearing and do not
allow redirect. A member said that if the cross-examination raises questions for the court,
the court can ask additional questions of the witness rather than allowing redirect.

Staff explained that the proposed new Rule 12.1 was based on the new
federal rule, which
was adopted on December 1, 2009.
New Rule 12.1, which is coordinated with proposed
new Civil Rule 62.1, provides a procedure for a party to request an "indicative ruling" on a
motion that the district court lacks authority to grant because of a pending appeal.

-7-

Mr. Boschee MOVED to approve the proposed new Rule 12.1.
Ms. McLean seconded.

A member commented that the new proposed rule deals with a
situation where a post
judgment motion is filed after an appeal. The rule allows the case to be remanded back to the
trial court to consider the motion without the appellate court losing its jurisdiction. The rule
requires the trial court, prior to remand, to give some indication that the motion is not
frivolous and the court might grant it.

A member said that N.D.R.App.P. 4(a)(3)(B) allows the Supreme
Court to remand a case
back to the trial court for a motion ruling, but it does not require the trial court to give any
indication whether the motion might be granted. N.D.R.App.P. 4(a)(3)(B) is also silent on
whether the Supreme Court can retain jurisdiction on a remand, which raises concerns about
the appeal deadline expiring during the remand period. The member said if the new rule is
adopted, N.D.R.App.P. 4(a)(3)(B) should be amended.

A member said N.D.R.App.P. 35(a)(3) also allows the Supreme Court
to remand a case, and
keep jurisdiction, if an issue has not been tried or determined at the trial level. The member
said this rule would likely apply in only a limited range of cases.

The Chair said that the Supreme Court, in general, was interested in
having cases disposed
of at a lower level and likely would be willing to return cases to the trial court for resolution.
The Chair said that the innovation in the proposed rule was that it allowed a party to go to
the trial court, while the appeal was pending, and ask the court how it might rule on a
proposed post judgment motion before asking the Supreme Court to remand and possibly
have the case resolved at the trial court level.

The Chair said at present, once the notice of appeal is filed and the
record forwarded to the
Supreme Court, the trial court loses jurisdiction to make any further orders. Parties may ask
the Supreme Court to remand to resolve an issue and the Supreme Court may retain
jurisdiction at its discretion.

A member asked whether the district court judges on the Committee
were comfortable with
the idea of providing indicative rulings on post judgment motions. A member said that, at
present, parties continue to file motions with the trial court after appealing. The member said
a rule that would clarify when the trial court had jurisdiction to act on a post judgment
motion would be useful.

A member asked why the federal courts chose to adopt the new rule.
A member responded
that the explanatory note to the federal court rule indicated that the rule was

-8-

intended to provide better coordination between appellate and trial court when a party
raises
a "substantial issue" with the trial court in a post judgment, post-appeal motion.

A member said that there didn't appear to be much difference between
current Supreme
Court practice and what the new rule would allow. A member said that now, the Supreme
Court makes a decision on whether to remand, while under the new rule, the trial court
would have to make some kind of decision prior to a remand.

A member suggested that, if the Committee decides the new rule
should not be adopted,
language should be added to N.D.R.App.P. 4(a)(3)(B) indicating that the Supreme Court
retains jurisdiction on a remand.

Staff explained that proposed new Rule 12.1 is based on the new
federal rule, which was
adopted on December 1, 2009. New Rule 62.1 is integrated with the parallel proposed new
Appellate Rule 12.1.

The proposal to adopt new Rule 62.1 failed for lack of a
motion.

By unanimous consent, staff was
instructed to research possible modifications to
N.D.R.App.P. 4 and 35 regarding the Supreme Court retaining jurisdiction on remand and
to bring the rules back to the Committee for consideration.

Staff explained that the Committee approved amendments to Rule 13
at the January 2008
meeting including the deletion and transfer of paragraph (c)(2) to Rule 55. It was proposed
that paragraph (c)(2) be moved to Rule 55 since the situation it addresses could only occur
in a default judgment case. This transfer is incorporated into the draft before the Committee.

Staff explained that the proposed amendments to Rule 13 are based on
the December 1,
2009, amendments made to the federal rules. The amendment to Rule 13 deletes subdivision
(f), which sets out standards for amending pleadings to add a counterclaim. The subdivision
is redundant of Rule 15, which sets out standards for amending pleadings in general.

A member commented that Rule 13(f) did not seem to be a redundant
provision. The
member suggested that Rule 13(f) was incorporated into the rules because of the distinction
between mandatory counterclaims and permissive counterclaims. The member said that if
a compulsory counterclaim is not asserted in the original answer, the counterclaim is
considered waived. The member said that Rule 13(f) provided grounds for relief for having
omitted a compulsory counterclaim if a party could show oversight, inadvertence or
excusable neglect. A member said Rule 13(f) is a savings clause that is needed because
compulsory counterclaims do not fall under the liberal pleading standard of Rule
15.

The motion to adopt the proposed amendments to Rule 13
CARRIED.

Judge McCullough MOVED to send the proposed rule amendments
immediately to the
Supreme Court to be considered with the Annual Rules Package. Judge Herauf seconded.
The motion CARRIED.

Staff explained that the Supreme Court approved Rule 707 subject to comment and the
comment period expired on March 1, 2010. Based on comments received, the Court
proposed some amendments to its rule and has sent the rule as amended for the Committee
to review.

Judge Kleven MOVED to adopt the proposed amendments to Rule
707. Mr. Dunn

-10-

seconded.

A member asked why the "prima facie" language was removed from
the rule. Staff said
that the change was in response to the comments made to the rule by the bar.

A member said that the main problem with the rule was that it was
one-sided. The member
said that if, for example, a defendant was charged with DUI and took a blood test and the test
indicated a blood alcohol content of .05, by statute the defendant would be presumed not to
be under the influence of alcohol. The member said the rule would not help the defense in
such a case. If the state wanted to use the analytical report, it would merely need to give
notice and, barring a defense objection, it could submit the report in evidence; if the defense
wanted to use the report, it would need to call the state toxicologist and lay a foundation.
The member said that the same standards should apply when the state or the defense seek to
admit an analytical report.

A member said that the reason why the rule provided a method for the
state to admit reports
and not the defense was because criminal defendants are protected by the confrontation
clause while the state is not. The legislature has determined that certified reports are prima
facie evidence, while the U.S. Supreme Court has decided that a defendant's confrontation
clause rights apply to reports. The member said the rule attempts to implement these
principles.

A member replied that the rule, which governs putting a report into
evidence, should be
even handed. The member said that a report is not prima facie evidence until it is admitted.
A member replied that a certified analytical report, offered by a criminal defendant, would
be self-authenticating under the Rules of Evidence. The member said the only reason Rule
707 was needed was because a defendant had a confrontation clause right that blocks
self-authentication of a report when it is offered as evidence against a defendant.

A member said what is happening now in the courts under Rule 707 is
that the government
gives notice, defendants file a standard response, and the government is required to produce
a witness for cross examination to validate the report. A member said that the state may be
required to produce multiple witnesses in some cases, as defense attorneys have argued that
everyone involved with filling out the report should be made available for cross
examination.

A member said that courts, prosecutors, and defense attorneys are still
adjusting to the rule.

The motion to adopt the Court's amendments
CARRIED.

-11-

By unanimous consent, staff was instructed to research the approaches taken by other
states
to the United State's Supreme Court's decision in Melendez Diaz v.
Massachusetts.

On a separate issue, staff explained that the Chair had inquired whether Rule 707 would
apply to juvenile matters, specifically, the delinquent offense of driving under the influence.
Staff research indicated that the confrontation clause does apply to delinquency proceedings.
Staff suggested that the Committee could consider whether any additional amendments
would be appropriate for Rule 707 in light of its possible usefulness in some juvenile
matters.

A member said the language of the rule as amended by the Committee
applied only to
criminal trials and not juvenile matters. The member said the rule would need to be further
amended to clarify whether it applied to delinquency matters in which juveniles have
confrontation clause rights.

A member said that the time lines in the rule would not be a problem in
juvenile cases. The
member said that if a juvenile case goes to trial, it typically would be continued to allow time
for the parties to prepare. A member said that, in practice, the initial appearance takes place
within the 30-day juvenile deadline but the trial does not occur at that time unless the parties
stipulate. The member said that juvenile trials are expedited in comparison to adult trials,
but that time is still allocated for motions and discovery in a contested case.

A member said that if the proposed motion is not adopted, analytical
reports would be
inadmissible in juvenile delinquency proceedings absent foundation testimony under
Melendez-Diaz. The member said the change would be beneficial to the state by
simplifying
admission of analytical reports in juvenile proceedings.

Motion CARRIED.

A member said that proposed language in the rule requires the
prosecution to serve a copy
of the analytical report on the defendant or defendant's attorney. The member said the
language did not establish a time frame for service of the report. A member replied that
state's attorneys typically send the report to the defendant as soon as it is received from the
lab.

Mr. Hoy MOVED to add language "and must also serve a copy of the
report on the
defendant or the defendant's attorney" to page 46, line 6, after the word "report" and
to

-12-

delete the last sentence. Judge McCullough seconded.

A member said that the state would not necessarily have the report
itself at the time it gives
notice of its intent to introduce the report. The member asked how the state could send out
the report if it did not have it. A member replied that if the report was going to be contested,
it was important for the defense to have the report in hand 30 days before the trial.

A member said that the state often does not receive the report until
shortly before trial,
including the day of trial itself. The member said that 30 day report requirement would slow
down completion of cases.

The motion CARRIED.

Judge Herauf MOVED to send the Committee's proposed rule
amendments to Rule 707
immediately to the Supreme Court as an emergency measure. Judge McLees seconded. The
motion CARRIED.

Staff explained that the proposed amendments to Rule 48 were based
on the December 1,
2009, amendments to the federal rules. The proposed amendments add a provision similar
to that in corresponding N.D.R.Crim.P. 31(d) that allows a court to poll the jury individually
on its own and requires a poll at a party's request.

Staff explained that the Supreme Court has suggested that Rule 20 be amended to provide
a procedure for district court to review a magistrate's decision on the issuance of a domestic
violence protection order or a disorderly conduct restraining order.

A member said that this proposal would be a significant change in the
rule. The member
said allowing a change as suggested in the rule would be a first step to allowing de novo
review on everything that magistrates do, which would not be appropriate. The member said
that most of the things the magistrates are allowed to do under the rule are preliminary
actions. The member said a better approach would be to amend the rule to allow magistrates
to only issue temporary orders rather than permanent orders and require district judges to
issue any permanent orders that may be required.

A member said that Grand Forks has a situation where it has two
attorneys who both act
as magistrates and referees, doing all the tasks allowed by the magistrate and referee rules.
A member said the situation is similar in Cass County.

A member said that another solution would be to remove language
from Rule 20 that allows
magistrates to do permanent domestic violence protection and disorderly conduct restraining
orders and transfer this language to the referee rule, so that law trained magistrate/referees
would be able to continue to enter these orders. A member replied it was preferable to have
judges do these orders instead.

A member suggested that a provision could be added to the magistrate
rule that allowed
matters to be removed to a district judge on request of a party.

A member said if a district did not want the orders of its magistrates to
be subject to de
novo review, the district could omit the power to enter permanent orders from the
magistrate's appointment order. A member replied that districts generally want to give
magistrates as broad a grant of power as possible in case it is necessary, at some point after
they are appointed, the district needs a magistrate to handle a certain class of case.

The Chair said that the court administrator did a survey of how the
districts were using their
referees and magistrates, and the rules were amended based on the needs of the districts. The
Chair said the rule sections listing duties that may be given to magistrates reflected
the

-14-

needs and requests of the districts. The Chair said the Supreme Court did not want
matters
coming directly from a magistrate to the court without intermediate review by the district
court.

A member said that if a district did not want its magistrates to have all
the duties possible
under the rule, its presiding judge can choose to grant only specific duties so that magistrates
would be limited to temporary orders. A member replied that the only final order a
magistrate can hear is a disorderly conduct restraining order, and if inserting a review process
into the magistrate rule is not acceptable to the Committee, it would make sense to transfer
the power to grant disorderly conduct restraining orders to Administrative Rule 13, the
referee rule.

A member said transferring this power would be a good fix because
referee orders are
already subject to review by rule. The member said the power to grant permanent domestic
violence protection orders should also be removed from the magistrate rule.

A member asked about what would happen if a district judge or referee
was unavailable and
a magistrate needed to take action on a domestic violence protection order. A member
replied that a magistrate could grant a temporary order that would be valid for 72
hours.

A member said that many of the magistrates in North Dakota are not
law trained. A
member said that this is one reason why the authority to grant permanent domestic violence
protection orders and disorderly conduct restraining orders should be given to referees rather
than magistrates. The member said if this change was made, the referee rule also allows
parties to ask for a district judge to hear the matter instead.

By unanimous consent, the rule was tabled until the Committee's
Friday session so that
staff could prepare revised rule drafts for the Committee to examine.

Staff explained that Assistant Cass County State's Attorney Kim Hegvik has suggested that
Rule 12 be amended to make the language "to the extent not privileged or prohibited by
statute, rule, or regulation"
applicable to discovery from all parties covered by the rule.

A member said that the Juvenile Policy Board, which drafted the rule, discussed the
issue
raised by Ms. Hegvik at length. The member said Board members had objected to more
expansive use of the language proposed by Ms. Hegvik.

A member asked what information would be protected
by the language "to the extent not
privileged or prohibited by statute, rule, or regulation." A member replied that the identities
of the reporters on a child abuse or neglect issue could be protected and the release of drug
and alcohol records could be restricted. The member said the distinction between use of
privilege in deprivation cases as opposed to delinquency cases was linked to the greater
rights possessed by the subject of a delinquency proceeding.

Mr. Quick MOVED to table Rule 12 so that staff could study the
background of the rule
to determine the rationale for the use of the provision "to the extent
not privileged or
prohibited by statute, rule, or regulation" in part of the rule. Judge Herauf seconded. Motion
CARRIED.

Staff explained that attorney Tom Dickson recently wrote a letter pointing out that records
of deferred impositions of sentences resulting in dismissal are not accessible to the public
under Rule 41 but that dismissals resulting from any other reason remain accessible. He has
requested that this issue be addressed.

The Chair opened the matter for discussion.

A member said that the law creates an unfair result for people who
have charges dismissed.
The member talked about a letter written by a young woman who had been in an automobile
where a large amount of drugs were found. The woman was arrested for possession with
intent to distribute. Shortly thereafter, after investigating the woman's story that she had just
borrowed the car without knowing the drugs were in it, the state dismissed all charges against
the woman. Now, the woman writes that she can't get a job because the charge remains on
her record (even though dismissed) and is easily accessible to people researching her
background on the court website. The member said that the retention of dismissed criminal
charges in court records, especially on the website, causes a severe impact on people's
lives.

A member said that back when people had to go to the courthouse to
look at court records,
no one really cared whether records of dismissed charges were retained. The member said
now that criminal records are easily available on the Internet, the retention of

-16-

records of dismissed charges is a large issue. The member said the Supreme Court
needs to
look overall at how records are presented on the website and consider changing its policies
on dismissed criminal charges.

A member said the woman who had written about her situation had
included copies of her
records as printed off the Internet. The member said that it was hard to tell that the charges
against the woman had been dismissed without closely examining the records. The member
said that records of dismissed criminal charges displayed on the website should somehow
clearly indicate that charges were dismissed or the record should not be displayed at all.

A member said that in another case, a truck driver was arrested on a
felony drug possession
charge at the border. The driver said, and the state verified, that it was his first trip with the
truck and he had no knowledge of the drugs in the truck. The member said the charges were
ultimately dismissed, but the record of the charges will now be on display permanently and
will likely affect the driver's future ability to keep a commercial license.

A member said the main problem was how dismissed charges were
displayed on the
website. The member said that sometimes, the state will make five charges against a
defendant and dismiss two during plea negotiations. The member said that these dismissed
charges should not be hidden, but that it should be clear they were dismissed when the record
is displayed.

A member said that, for law enforcement purposes, dismissed charges
should not be
eliminated from the court record. The member, however, questioned the value of retaining
a record of dismissed charges that is available online to the public. The member said that
even when it is a clear a charge has been dismissed, the stain remains from the
charge.

A member said that the Committee historically had resisted considering
rule changes that
would allow possible expungement of criminal records. The member said Minnesota had
a statute allowing applications for expungement and giving courts discretion to address the
issue in appropriate cases by sealing records.

Staff stated that Section 6 of Administrative Rule 41 allows individuals
to ask the court to
restrict access to a court record. Staff said the court record information that is posted on the
web is generated from information input by the clerks, so the clerks would need to be
involved if there was any new policy regarding display of records involving dismissed
criminal charges.

A member said that if people understood how much information is
available to the

-17-

public on the court records website, they would go crazy. The member said the courts
need
to be responsive to people's concerns about the availability of information. The member said
that the state was on the verge of a sea change in record availability and access, which could
conceivably make even more information easily available on the web.

A member said that it is a problem when a defendant has to plead
guilty to charges that the
state wants to dismiss in order to get a deferred imposition, which will be sealed. A member
said that easy access to records of dismissed criminal charges not only impacts job searches
but also whether a person can find a place to rent. The member said Minnesota has a nice
mechanism that allows people to apply to have their records sealed and gives courts
discretion to act in appropriate cases.

A member said that Rule 41 allows sealing of records, but that courts
had not been willing
to grant motions to seal. A member said this was why courts react negatively to these
requests, reasoning that it is not fair to single out records to seal.

A member said the computerization of the information was the root of
the problem. The
member said that dismissed criminal charge records have always been available at the
courthouse, but the fact that they can now easily be called up from anywhere creates a
lifetime stigma. A member said that the problem extends beyond criminal charges to records
in family law cases such as termination of parental rights matters.

A member said the Committee was an appropriate forum to address
the issues involving
Rule 41. The member said that the Committee had addressed matters such as access to bulk
records under the rule. The member said the Committee should address the issue of sealing
records itself.

A member said it is unlikely that the legislature would pass a statute
allowing automatic
sealing of dismissed criminal charges because of the politics of the issue.

A member said one approach that could be used with dismissed
criminal charges would be
to replace the record with a note, instructing the researcher to see the clerk of court for
information about the record. This would allow serious record researchers the opportunity
to see the record if they were willing to make the trip to the courthouse.

A member said that work needs to be done in this area beyond just
changing the rule. The
member said that input from the public is needed to guide the court how to move forward.
The member said that a task force could be assembled to meet with the public as has been
done in the past when topics needed to be addressed.

-18-

A member said that assembling a task force would be useful, but that the issue of
electronic
posting of dismissed criminal charges needed to be addressed in a timely manner. The
member said it was unlikely a mere rule change allowing simplified sealing of records would
accomplish much because many people who have dismissed criminal charges are not likely
to be aware of rule changes or the procedure to have records sealed. The member said that
a new policy for handling posting of dismissed criminal charges needed to be implemented.

A member said a simple place to start would be having the initial
screen listing criminal
charges against a person to show which of those charges had been dismissed.

The Chair suggested that she could send a letter to the Chief Justice
indicating that the
Committee had identified concerns about displaying records of dismissed criminal charges
on the web and ask the Chief Justice whether this concern could be referred to an appropriate
committee, such as the Court Technology Committee.

A member said sending such a letter would be a good idea. The
member said the letter
should stress that this is a hot button issue with court administrators, the clerks of court, and
the public. The member said people were being subjected to unfair consequences due to
easy availability of information about dismissed criminal charges on the web.

A member said a related issue was the problem of people with
common names. The
member said that, because of the Committee and the Court's concern with privacy,
information needed to establish the actual identity of a person with a common name, such
as address or birth date, is not available on the web.

The Chair pointed out that the Court had amended the rules to allow
more personal
identifying information to be posted. The Chair said that it is a balancing act between
privacy and the public's need for information.

The Chair said she would send a letter to the Chief Justice. In
addition, by unanimous
consent, staff was instructed to perform additional research into the Minnesota expungement
rule and into the current North Dakota statutes and rules on sealing records.

Staff explained that State Court Administrator Sally Holewa has proposed two amendments
to Rule 41, Section 5(b): restricting access to domestic violence protection order and
disorderly conduct restraining order cases when the initial petition is dismissed on its face;
and restricting access to cases brought under N.D.C.C. ch. 14-15.1, Child Relinquishment
to Identified Adoptive Parents.

A member said the suggested amendments pointed out problems with
the way Rule 41 has
been dealt with since it was adopted. The member said that the rule just grows without any
overarching analysis to guide it. The member said that there should be some serious analysis
of what the court wants to do with the rule, rather than using a band aid approach to fix
problems.

A member asked what harm the proposed amendment limiting access
to dismissed domestic
violence and disorderly conduct cases was designed to address. Members said there could
be very harmful information directed at the respondent in the petition, and if a petition is so
without merit to be dismissed on its face, references to this information should not be made
public.

A member said that such petitions are often not even filed and would
not be accessible to
the public in the first place. A member said all petitions are supposed to be filed, but when
they come in at the last minute and are taken directly to the first available judge, they
sometimes are not filed. A member said that some counties have a policy to enter an order
on every petition, even when summarily denied. A member said this policy eliminates judge
shopping by parties, who might come back and try with a different judge if rejected the first
time.

A member asked why orders on
petitions rejected on their face should be restricted when
orders on petitions rejected after a hearing are public. The member said rejected petitions
should all be treated the same.

A member wondered why voluntary child relinquishment cases are not
already protected
under the adoption statutes. A member said that the voluntary cases are covered by a
different chapter of the code, adoption proceedings are under N.D.C.C. ch. 14-15 while
voluntary relinquishment is under N.D.C.C. ch. 14-15.1

The motion to adopt the proposed amendments to Rule 41
CARRIED.

The meeting recessed at 5:00 p.m. on
September 23, 2010.

September 24, 2010 -
Friday

The meeting was called to
order at approximately 9:00 a.m. by Justice Mary Muehlen
Maring, Chair.

Staff handed out new proposed amendments to Rule 20 and
companion amendments to
Rule 13, N.D. Sup. Ct. Admin. R.,
Judicial Referees. The proposed amendments to Rule 20
would remove magistrate authority to issue permanent disorderly conduct restraining orders
and domestic violence protection orders. Under the new amendments, the proposed review
procedure would not be part of Rule 20. Proposed amendments to Rule 13 would give
referees the authority to issue disorderly conduct restraining orders.

Mr. Quick MOVED to adopt the proposed amendments to Rules 13
and 20. Judge Herauf
seconded.

A member asked whether magistrates should be allowed to issue
temporary disorderly
conduct restraining orders. Several members said it would be a good idea to allow
magistrates to issue temporary disorderly conduct restraining orders.

A member said that magistrates would not automatically get authority
to issue temporary
disorderly conduct restraining orders if the amendment was approved--this would be subject
to a delegation of authority by the presiding judge.

Motion CARRIED.

The motion to adopt the proposed amendments to Rules 13 and 20
CARRIED.

Staff explained that Attorney Pat Morley had expressed some concerns
about the
requirements of Rule 54(b) not being followed correctly in the district courts. Mr. Morley
did not provide any proposed amendments to the rule.

The Chair opened the matter for
discussion. The Chair said that it is common in matters
involving multiple parties for dismissed parties to seek final judgments without obtaining
Rule 54(b) certification.

A member said that the Trial Court
Operations Committee should look to see what can

-21-

be done to better educate clerks and court staff on the proper procedure for entering
judgments in matters involving multiple parties.

A member said that piecemeal appeals
were not a problem when defendants are dismissed
by settlement because there cannot be an appeal from a settlement. The member said the
issue comes up when there is a dismissal under N.D.R.Civ.P. 12 or 56 for one party, but not
all. The member said that such an order is interlocutory and subject to a motion for
reconsideration before final judgment. The member said if the dismissal or summary
judgment is entered as a final judgment, the appeal time begins to run and the opposing party
needs to appeal the matter to protect itself. The member said one approach to avoid this
problem would be to ask the court to enter an order granting judgment to the dismissed
party that will become final upon resolution of the remaining claims. The member said this
is not a perfect approach because lawyers and parties want a matter to be final and finished
at the point they are dismissed out.

The member said there could be a new
subdivision to Rule 54 that provided for entry of a
judgment upon a dismissal or summary judgment, with the running of the time for appeal
delayed until all claims in the matter had been resolved for all parties.

A member said some language could be
added to the explanatory note to indicate
appropriate procedure under the rule judgments not involving all parties. The member said
the rule is clear that if one party in a multiple party case wants a final judgment, certification
under Rule 54(b) is required. A judgment without such certification is ineffective--unless
there is a Rule 54(b) certification, a court should wait until all claims as to all parties are
resolved before final judgment is entered.

A member said that language in the
explanatory note might be useful, but prudent practice
would still dictate an appeal if a party obtains a judgment in a multiple party case--even
without Rule 54(b) certification. The member said a better approach would be to clarify in
the language of the rule that the time for appeal does not begin to run on a judgment entered
in a multiple party case absent Rule 54(b) certification.

A member suggested that an alternative
to an appeal would be to make a motion to the court
to vacate a judgment entered without Rule 54(b) certification. The member said that
improved guidance in the explanatory note could be used to support such a
motion.

A member said the problem could be
solved through educating judges and clerks who

Staff explained that the Supreme Court had asked the Committee to
discuss Rule 32.1 and
the issue of whether a district court judge should be allowed to issue an order revoking
probation after the expiration of 61 days if the State has served a petition for revocation
before the 61 days have expired. Staff presented
proposed amendments to Rule 32.1 addressing
the Court's concerns.

The Chair said there is tension between
N.D.C.C. § 12.1-32-07(7) and Rule 32.1 in
misdemeanor cases because, under the statute, the court loses jurisdiction on the 61st
day.

A member said the intent of Rule 32.1
was to close misdemeanor cases after 61 days. A
member replied, however, that there should be consistency between felony and misdemeanor
cases and the court should not lose jurisdiction to revoke probation if the state files a petition
to revoke within 60 days. The member said that rule's focus on finality could still be
retained if the rule provided that a case would be dismissed unless the state filed a revocation
petition within 60 days.

A member suggested that the words "if a
petition for revocation is filed" after the word
"sentence" on page 163, line 9. The member said adding this terminology would allow the
court to retain jurisdiction to address a timely filed petition.

A member said that the proposal as
presented by staff should be retained. The member said
that probation in misdemeanor cases is unsupervised, which is different from felony cases.
The member said that automatic dismissal after 60 days has been in place in misdemeanor
cases for a considerable time and it works really well.

A member said that the 60 day automatic
dismissal does not work in cases where the state
files a revocation petition within the 60 day time frame and the court cannot schedule a
hearing in time or rule in time. A member replied that it is up to the state in such cases to
remind the judge of the deadline and request a ruling before the matter is dismissed.

-23-

Mr. Hoy MOVED to change "61" on page 163, line 10, to "60."
Judge Herauf seconded.

A member said that the proposed change would make it clear the court
has authority to
change its order within 60 days--otherwise the matter would be dismissed on the 61st day.
The member said it is necessary for the court to be done with the matter before day 61 so that
it can be terminated and sealed on that day.

Motion CARRIED.

A member confirmed that the rule as amended would require the state
to get any revocation
petition submitted in time for the court to schedule a hearing and rule on the petition prior
to the end of the 60 day period.

Staff explained that attorney John Petrik had requested that Rule 16 be
amended to require
a trial date be set at the Rule 16 conference.

Because Mr. Petrik did not request a specific change, the Chair opened
the matter for
discussion of how the rule might be amended to reflect Mr. Petrik's concerns.

A member said that while the trial date is not always set at the
scheduling conference, the
parties do draft a scheduling order and discuss when they will be ready for trial. Once the
scheduling order is finalized, court staff get conflict dates from the parties and work to
determine when a trial date might be possible. The member said that a judge at a scheduling
conference might not know what dates were available for trial so it may not be possible to
require a trial date to be set at the scheduling conference.

A member said Rule 16 does not mandate what happens at a pretrial or
scheduling
conference. The rule lists a number of things that may be considered. The member said it
would not be appropriate to require that the trial date be set as part of a pretrial
conference.

A member said that handing out trial dates months in advance runs
counter to case

-24-

flow management principles. A member said parties often do not want a trial date to be
set
until pretrial issues are resolved. A member said it is better to find out from the parties when
they will be ready for trial and to work from that point to try to find an appropriate time
frame for the trial. A member said judges are generally open to input from the attorneys on
scheduling a trial.

A member said that when a scheduling order is completed, this triggers
action by the clerk
to query counsel on when they will be available for trial. The member said the current
system has the appropriate features in place to allow trial dates to be set.

A member said that the summary proceeding is used by many parties.
The member said the
proceedings meet a need for many people who do not have the resources to divorce by other
means. The member said that judges typically need to give substantial assistance to both
sides in the summary proceedings.

A member said parties seem to pay no attention to the asset limitation
in the rule. A
member said the limit is not realistic and is meaningless in most cases. The member said if
a party fills out the paperwork and files the action, regardless of their assets, they are
effectively proceeding pro se in a divorce action before the court. The member said the court
cannot require the party to have an attorney or refuse to allow the party to use the
forms.

A member asked whether their was a reason for an asset limit at all in a
summary
proceeding. A member replied that the asset limit was important because the summary
proceeding was a "small claims divorce" and not proper to use when the parties need a
business or other significant assets divided. The member said the summary proceedings were
not always consent divorces--they could be fully contested.

Staff explained that the Supreme Court has proposed that Rule
7.1(b)(2) be amended to
require that any proposed findings of fact and conclusions of law submitted to the district
court by a party must also be filed with the clerk of court.

The Chair said that in Snyder v. Snyder, 2010 ND 161, the
court had asked the parties to
send proposed findings of fact and conclusions of law in electronic form. The parties sent
the electronic documents to the judge but they did not file them with the court. The Chair
said that when the matter was appealed, the proposed findings and conclusions were not part
of the record and the matter had to be remanded for the record to be
supplemented.

A member asked how the proposed change would fit in with the court
system's move
toward paperless filing. A member responded that once the electronic filing system was in
place, parties would no longer be e-mailing word processing documents to the judge but
would be sending all documents to the clerk through the filing system. The member said
having everything go to the clerk first is the best system rather sending items by direct e-mail
to the judge.

A member said that N.D.R.Ct. 3.1(e) already requires parties to submit
documents to the
clerk in order to file the document. The member said that the clerks had been attempting to
educate the bar and the public that a document must be submitted to the clerk, rather than the
judge, for the document to be filed.

Judge McCullough MOVED to add the words "All proposed findings
of fact and
conclusions of law must be filed with the clerk" after "allow" on page 187, line 13. Judge
Herauf seconded. Motion CARRIED.

The motion to adopt the proposed amendments to Rule 7.1
CARRIED.

Judge Fontaine MOVED to send the proposed rule amendments
immediately to the
Supreme Court to be considered with the Annual Rules Package. Mr. Quick seconded. The
motion CARRIED.

Staff explained that the Supreme Court has requested that a new rule be drafted for district
courts to use when planning to conduct an in chambers interview of a child in a custody or
visitation case. Staff has prepared a draft rule modeled after guidelines adopted by the
Oklahoma Supreme Court.

Ms. Ottmar MOVED to adopt the proposed new Rule 8.13. Ms.
McLean seconded.

The Chair said that the new rule was proposed because the Supreme
Court is seeing more
and more issues involving in camera proceedings in family law cases.

A member said that the rule seems to assume the only reason for an in
camera proceeding
is to ask the child which parent they want to live with. The member said that sometimes
judges meet with children just to find out what is going on and what the child wants to say.
The member said it would be inappropriate to limit in camera proceedings to cases where a
child's preference was the issue. The member said that talking to children who are not
mature enough to give a preference is also useful.

A member said there needed to be flexibility under the rule regarding
who would be present
at an in camera interview. The member said that lawyers and guardians ad litem may
sometimes be present. The member said in camera interviews should be recorded and the
parents should be allowed to hear the recordings. The member said that, for mature children,
it is sometimes best that they testify in court rather than in an in camera
proceeding.

A member questioned subdivision (a) of the proposed rule. The
member said the meaning
of "preliminary findings" as referred to in the subdivision was nebulous. The member said
it was unclear where the court would get the information required to make the preliminary
finding required.

A member said that an in chambers interview is generally conducted by
stipulation. The
member said it would be rare for an in chambers interview to be conducted when one of the
parties objected.

A member asked whether subdivision (a) was intended to allow the
court to justify through
findings, the interview of a child over the objections of one or both of the parents. The
member said that nothing in the rules at present allows a court to interview a child without the
parents' consent. A member said that often, one parent will request an in chambers interview
while the other objects. The member asked whether the rule was

-27-

intended to allow a court to conduct an interview without the parents' consent.

A member said that subdivision (b) of the proposed rule seemed to
require the consent of
both parents to an in chambers interview.

A member said that one good feature of the proposed rule was in
subdivision (e), which
allows the district to use its discretion to decide whether to allow the parents access to the
interview transcript if the matter is not appealed. The member said there have been cases
where reading the transcript or hearing a recording of the in chambers interview severely
impacted the relationship between a child and one or both parents.

A member said the point of the rule was to establish procedures for
uniform practice across
the state. A member said it would be helpful to obtain guidance on best practices for in
camera interviews.

Judge Nelson MOVED to delete lines 4-8 on page 195, deleting
proposed subdivision (a),
and to reletter the remainder of the rule. Judge McLees seconded.

A member said there was no guidance on what the preliminary findings
mentioned in the
subdivision should be. A member said that deleting the subdivision was appropriate but that
the rule should retain some reference to whether the child is of sufficient maturity. A
member replied that "sufficient maturity" is only an issue when the child's preference is a
question. The member said an in camera interview might be appropriate even if the child is
not of "sufficient maturity." The member said that younger children can still provide useful
information to the court.

A member said if subdivision (a) is removed, the proposed rule should
be retitled to remove
"in custody or visitation case" from the title. A member replied that the title should make
clear that the rule applies to domestic relations cases because an in chambers interview
generally would not be appropriate in a juvenile case.

The motion CARRIED.

A member suggested that the rule should reference court recorders in
addition to court
reporters. A member said the rule should indicate that the interview is on the record, but that
reference to how it is recorded may not be necessary.

Judge Nelson MOVED to replace "court reporter be present" on line
20, page 195, with
"record be made" and to change the next sentence to read "If a request for a record is made,
the interview must be recorded otherwise the parties waive objection to the issue
on

-28-

appeal." Judge Herauf seconded.

A member confirmed that "be recorded" would include recording by a
court reporter or
court recorder.

The motion CARRIED.

By unanimous consent, the Committee agreed that any references to
"custody" or
"visitation" in the rule would be changed, respectively, to "primary residential responsibility"
and "parenting time."

Judge McCullough MOVED to change the title to "In Chambers
Interview of Child in
Domestic Relations Case." Judge Nelson seconded.

A member said that if the rule is being broadened to include interviews
of children in cases
where residential preference is not an issue, a broader term should also be used in the title.
A member replied that the conversation with the child would likely still deal with the issues
of primary residential responsibility and parenting time even if preference was not being
considered.

The motion CARRIED.

Mr. Plambeck MOVED to amend lines 9-10 on page 195 to read "If
the parents consent to
an in chambers interview of a child, or otherwise waive their presence, the judge may
proceed with an in chambers interview on issues related to primary residential responsibility
and parenting time." Ms. Ottmar seconded.

By unanimous consent, the motion language was amended to read:
"The judge may proceed
with an in chambers interview of a child relating to issues of primary residential
responsibility and parenting time if the parents consent or otherwise waive their
presence."

A member asked if an "in chambers interview" as the term is used in
the rule means an
interview where the parents are not present. A member said they could be present in some
cases.

A member asked whether there were "domestic relations cases" other
than those "relating
to issues of primary residential responsibility and parenting time" in which judges had found
reasons to interview children in chambers. The member asked if in chambers interviews took
place in cases involving domestic violence protection orders or disorderly conduct restraining
orders.

-29-

A member said that keeping a narrow focus to in chambers interviews, as proposed in
the
motion language, was better than widening the focus to include domestic violence protection
order or disorderly conduct restraining order cases. A member asked whether the title should
be narrowed to reflect this focus.

By unanimous consent, the motion language was amended to read:
"The judge may proceed
with an in chambers interview of a child relating to issues of primary residential
responsibility or parenting time if the parents consent or otherwise waive their
presence."

A member asked how a parent would waive his or her "presence."
Members replied that
the parent could fail to show up at the proceeding or be kicked out of the proceeding after
being disruptive. A member suggested that the motion language be further amended to make
it clear that the parent is waiving "consent" to the in chambers interview not "presence" at
the interview.

A member suggested that the motion language could be changed to
"unless a parent
objects." Because an absent parent cannot object, an in chambers interview could go
forward if one of the parents failed to show up at the proceeding. A member replied that it
would be preferable to have on the record that the parties consented and a party cannot
consent unless they show up.

Judge Herauf MOVED a substitute motion to change the motion
language to: "The judge
may proceed with an in chambers interview of a child relating to issues of primary residential
responsibility or parenting time if the parents consent. A party is considered to have
consented if the parent is voluntarily absent from the proceeding." Mr. Quick
seconded.

Motion to substitute CARRIED.

The motion to amend (as substituted) CARRIED.

A member said that the rule appeared to need more work than the
Committee could perform
at the meeting. The member said the rule seemed to embody several different concepts. The
member said, to start with, that the idea of what an "in chambers interview" constituted was
not clear. The member asked whether an in chambers interview could ever include the
parents under the rule's language.

A member said the rule already provided that whether counsel can
participate in an in
chambers interview is within the court's discretion. The member said the Committee could
develop introductory language on participation of the parents being within the court's
discretion. If the parents were excluded, the next step would be to consider whether
counsel

-30-

could participate.

Judge Nelson MOVED to revise the language at page 195, lines 11-18,
to refer only to the
procedure for determining whether counsel would be present at an in chambers interview.
Judge Greenwood seconded.

A member said that many of the members were assuming that an in
chambers interview
would not include the parents. A member said that, if this is what the Committee wanted the
rule to say, it should be made clear in the rule's language. A member said the rule implied
that parents would not be present at an in chambers interview.

Judge McLees MOVED to table until next meeting. Judge
McCullough seconded.

A member said there needed to be additional consideration of what the
Committee's intent
for the rule was to be. The member asked whether the Committee wanted to make procedure
for an in chambers interview wholly discretionary with the judge or whether consent from
both parents would continue to be required for the interview. The member said attorneys are
customarily present at in chambers interviews under current procedure. The member said
it was not a good idea for the court to be able to interview a child in chambers without
counsel present.

A member said the Committee should give staff some direction on
which direction the rule
should go. Some members said the parents' consent should be required, the parents should
not be present at the interview, and the court should use its discretion on whether to allow
counsel to be present. Other members, however, said the court should also have discretion
to allow the parents to be present at the interview.

A member said an in camera examination should be defined as an
examination of a child
where the parents are not present, and the rule should apply only to examinations meeting
the definition. The member said if the court wanted to conduct some sort of proceeding
where the parents were present, this rule would not apply. The member said the rule should
only apply when the parents are not there. The member also suggested that one emphasis
of the rule is that the proceeding needs to be on the record.

A member asked whether there was a statute or rule that allowed the
public to be excluded
from a proceeding where children testify. The member asked whether a member of the
public could obtain a transcript of an in camera interview with a child. The member said it
would not be a good idea to allow public access to in camera interviews. A member added
that, in a divorce case of significant public interest, it would be in the best interest of the
child to allow the court discretion to restrict public access to child testimony by
taking

-31-

the testimony in chambers.

A member said it should be clear under the rule that when the parents
consent to an in
camera interview, they are consenting to an interview to which they will not be
present.

Staff explained that amendments dealing with the seizure of electronically stored
information were made to Fed.R.Crim.P. 41, effective December 1, 2009. Staff asked the
Committee to discuss whether these amendments should be incorporated into the North
Dakota rule.

The Chair asked the Committee whether it wanted staff to go forward
and draft proposed
amendments to Rule 41.

A member said that an appropriate place for the amendments would be
under subdivision
(c) of the existing rule, with the amendments becoming a new paragraph (c)(4). The member
said that new federal language on inventories could be added to subdivision (d)

By unanimous consent, staff was instructed to incorporate federal
amendments and return
the rule to the Committee for discussion at the next meeting.

Staff explained that Committee member Larry Boschee had proposed
Rule 45(a)(3) be
amended to allow a North Dakota district court to issue a subpoena on a letter of request
from a tribal court of a federally-recognized tribe.

A member said that the background for the rule proposal was that, if a
witness lives in
Pembina and there is a proceeding in Canada where the witness's testimony is wanted, a
federal procedure allows the witness to be deposed. Likewise, if there is a lawsuit in
Minnesota and the witness is in Fargo, Rule 45 has a procedure that would allow the witness
to be deposed in Fargo for the proceeding. The member said, however, if there was a lawsuit
on an Indian reservation and the witness lives outside the reservation, there is no
provision

-32-

to get a subpoena to depose that person because a tribal court subpoena would not
extend
outside the tribal boundary. The member said the proposed amendment would allow
attorneys to get a subpoena to depose people outside the reservation to give testimony in
proceedings on the reservation.

A member said that it is difficult to track down people whose
testimony is needed in tribal
court proceedings because there currently is no mechanism to require the testimony of people
from outside the reservation.

A member asked whether any of the tribes in the state have a
reciprocal provision allowing
reservation residents to be subpoenaed into state court. The consensus of the Committee was
that there were no such provisions.

A member asked whether there were any Committees that brought
together people from the
state and tribal courts that could address the possibility of developing reciprocal provisions
for the tribes. A member said that the Committee on Tribal and State Court Affairs handled
such matters. A member suggested that the proposed rule change be brought to the attention
of the Tribal and State committee to show that the Court is acting to make it easier to
subpoena witnesses for tribal court matters.

A member said that the possible misuse of the rule by tribes that were
not federally
recognized could be a concern.

Staff explained that Judge Donovan Foughty had written the
Committee to point out, based
on his research in a recent case, that the law is not clear in North Dakota on what is and what
is not privileged between an attorney and an expert witness who might be called at trial.
Staff said that federal rulemakers had addressed this issue with an amendment to
Fed.R.Civ.P. 26 set to become effective in December 2010. Staff said that Committee
member Larry Boschee had also proposed some changes to Rule 26 related to expert witness
work product.

A member said that Mr. Boschee's proposed amendments would
expand the topics covered
in interrogatories to an expert expected to testify at trial. Under the proposed amendments,
a party could inquire about all the topics that would be covered, under the federal rules, in
an expert witness disclosure report. The member said this would allow a

-33-

party in a North Dakota case to get the same information about an expert as a party in a
federal case could get in an expert disclosure, which is not required in North Dakota.

A member said this proposal would address the concern raised by
Judge Foughty in his
memo because it would ensure that "the data or other information considered by the witness"
in forming an opinion would be discoverable.

The member said that the pending federal changes addressed this issue
in a different way
than proposed by Mr. Boschee because the reference to "or other information" would be
removed from the federal rule. The member said the pending federal changes would limit
the discovery of information provided to an expert by attorneys to facts, data and
assumptions.

The Chair said it would be a good idea to wait and see whether the
pending amendments
are approved by Congress and adopted by the federal courts.

By unanimous consent, staff was instructed to study the final and
approved federal
amendments to Rule 26 and to bring proposed rule amendments based on the federal
amendments to the Committee for discussion at next meeting.

The meeting adjourned at
approximately 11:30 a.m., on September 24, 2010.